Sarah Wood examines the ruling of the Divisional Court in the unsuccessful private prosecution brought against Boris Johnson
In quashing the decision of District Judge Coleman to issue a criminal summons against Boris Johnson, the Divisional Court has underlined the need to ensure that a private prosecution is not being brought for a vexatious motive ( EWHC 1709 Admin).
Those representing Mr Johnson were successfully able to overturn the decision to issue the summons on two grounds. Firstly, that there was no prima facie evidence of the alleged offence and secondly on the basis that the District Judge had failed to provide reasons for her finding that the prosecution was not being brought for political and vexatious motives.
The allegation had of course been that Mr Johnson had endorsed two misleading statements during the 2016 Brexit campaign:
‘We send the EU £350 million a week, let’s fund our NHS instead’ and ‘Let’s give our NHS the £350 million the EU takes every week’.
The argument advanced by the private prosecutor was that the figures put forward were false, and that Mr Johnson had deliberately acted in a misleading way by relying upon these figures in order to secure a political advantage.
In assessing whether the District Judge had been right to find that the allegation amounted to an offence known to law (misconduct in public office) such that she was entitled to issue the summons, the Court considered whether Mr Johnson was acting as, not simply whilst, a public official. In short the Court did not agree with the finding of the District Judge that he was acting as a public official, and nor did they agree with her finding that this ingredient of the offence was a matter for evidence at trial.
That finding would have been sufficient for the Divisional Court to quash the summons but the Court then went onto to consider the secondary argument advanced on behalf of Mr Johnson, namely that the prosecution was being brought for a vexatious purpose. In support of this the Court was directed to a document that had been compiled that sought to highlight some of the comments made by the Applicant (Mr Ball) on social media between 2016 and the date of the application.
The District Judge had been directed to the same document during a hearing in which she heard submissions about whether she ought to issue the summons. Having considered the arguments she had stated (at paragraph 56):
“I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant, some three years ago, there may have been a political purpose to these proceedings. However, the information for the summons was laid on the 28th February 2019 and that argument in my view is no longer pertinent.
I do not accept the application is vexatious.”
Unsurprisingly when quashing the summons the Divisional Court commented that the passage of time since 2016 was no answer to Mr Johnson’s detailed submission that the political motive for the prosecution was apparent from the evidence, and that the District Judge had failed to provide any reasoning to support her conclusion that the prosecution was not vexatious.
This aspect of the Divisional Court’s judgment serves to underline and highlight the test as set down in R (Kay and another) v Leeds Magistrates’ Court  2 Cr App R 27 where it was held (at para 22):
- The Magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.
- If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.
The Divisional Court in Mr Johnson’s case also sought to emphasise that, contrary to the ruling of the District Judge, the threshold test for the issue of a summons is a high one. It stressed (at paragraph 23) that the level of analysis of the legal framework of a proposed charge required by a Magistrate is particularly important now that indictable offences are sent direct to the Crown Court.
In Mr Johnson’s case the District Judge had found that there was a political motive behind bringing the prosecution. She had then failed to explain why the passage of time meant that the motive no longer existed at the point at which the information was laid. To that extent Mr Johnson’s case was more straightforward than those cases where there are, arguably, mixed motives behind the bringing of the prosecution.
In that situation the Courts have generally sought to find that that is permissible to bring the prosecution. In Dacre v City of Westminster Magistrates Court  EWHC 1667 it was emphasised that the mere presence of an indirect or improper motive in bringing a private prosecution did not necessarily spell the end of the proceedings. Parallel criminal and civil proceedings may therefore be brought, provided that it is fair and proportionate to do so and the decision to prosecute is not solely based upon an improper motive.
Similarly in R(G) v S and S  EWCA Crim 2119 the Court of Appeal further distinguished mixed and ulterior motives, clarifying that ‘mixed motives are to be distinguished from an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process’.
Where there are parallel civil proceedings it is, of course, vital that the private prosecutor makes full and frank disclosure of that fact when applying for the summons and complies with its ongoing duty of disclosure throughout the criminal proceedings, particularly so far as the parallel civil proceedings are concerned.
There are very few cases where the Magistrates will invite submissions on behalf of the intended Defendant regarding the appropriateness of issuing a summons, as occurred in this case. In the majority of private prosecutions the Court will merely consider the information laid on an ex parte basis and, it is hoped, properly apply the test as set down in Kay. Mr Johnson’s case was an exception to that rule given the public interest surrounding it. Happily the written reasons and judgment supplied by the District Judge when issuing the summons made the application to the Divisional Court (on the grounds that she had erred in law, and so had acted in excess of jurisdiction and unlawfully), that much easier because the Divisional Court was easily able to identify how she had misdirected herself.
That is not to say that the remedy of quashing a summons in the Divisional Court will not exist for other defendants who find themselves in a similar position, but it may be harder to argue. One does of course expect a professional District Judge to give reasons when making a judicial decision, but that will not always be the case and the meagre space allocated on the new prescribed form for the recording of reasons suggests that brevity is likely to be the order of the day. The other options available are to apply to the Magistrates to withdraw the summons, apply to stay the proceedings or invite the CPS to take over the case and discontinue it.
Either way, with the increase in the number of private prosecutions that are coming through the courts, and their use for alleged offending which goes beyond the traditional realm of neighbour disputes or common assault, the potential arguments relating to motive remain important and must always be fully considered by both the Prosecution and the Defence.
Sarah is Joint Head of the Business Crime Team at 5 St Andrew’s Hill. She is an experienced and highly accomplished practitioner who specialises in criminal and family matters involving high-value assets and complex financial arrangements. Sarah has been undertaking Private Prosecution work for the past 10 years, beginning with prosecuting on behalf of the RSPCA. She now regularly undertakes this work in both the Crown and Magistrates Courts in relation to trademark offences in connection with the sale of counterfeit luxury goods and tobacco. Recent instructions in this area include prosecuting an offence of bigamy and perverting the course of justice by a process server in bankruptcy proceedings. She has particular experience in dealing with the costs aspects of these cases, having defended costs applications brought against the Prosecution and appealing the decisions of the NTT before costs judges.